The Justice Department under President Donald Trump secretly obtained the phone records for three reporters at The Washington Post from the early months of the Trump administration, the newspaper disclosed Friday.
Prosecutors sought records for the reporters’ work, home and cellphone numbers from April to July 2017 in an attempt to figure out who had talked to them.
“We are deeply troubled by this use of government power to seek access to the communications of journalists,” Cameron Barr, the Post’s acting executive editor, said in a statement. “The Department of Justice should immediately make clear its reasons for this intrusion into the activities of reporters doing their jobs, an activity protected under the First Amendment.”
The department’s decision to seek a court order for the records, which came in 2020, would have required the approval of Attorney General William Barr, a department official said.
The Justice Department under the Trump administration had also prosecuted a former Senate aide over his contacts with three reporters in a case where prosecutors also secretly seized years’ worth of a New York Times reporter’s phone and email records. That case signaled a continuation of the aggressive prosecutions of leaks under the Obama administration.
Marc Raimondi, a Justice Department spokesman, said Friday in a statement about the seized Post records, “While rare, the department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into the unauthorized disclosure of classified information.”
He added, “The targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”
Under its guidelines, the Justice Department is supposed to exhaust other investigative steps before seeking permission to obtain the phone records or emails of journalists from telecommunications companies. In addition, the department is required to “strike the proper balance among several vital interests,” its guidelines said, like “safeguarding the essential role of the free press in fostering government accountability and an open society.”
Leak cases, as they are known inside the Justice Department, are notoriously hard to prosecute and require FBI agents to spend large amounts of time on cases that rarely lead to charges.
It was not clear what prompted the Justice Department move, but in July 2017, the Post published an article about Sergey Kislyak, who was Russia’s ambassador to the United States at the time, and Jeff Sessions, who was the attorney general at the time the article was published.
The Post reported that the two men had discussed the Trump campaign during the 2016 presidential election, when Sessions was a Republican senator from Alabama and a prominent supporter of Trump. The article referred to U.S. surveillance intercepts, which are highly classified and some of the most closely held secrets in the government.
Beyond the phone records of the Post reporters — Ellen Nakashima, Greg Miller and Adam Entous, who now works at The New Yorker — prosecutors also secured a court order to obtain metadata for the reporters’ work email accounts, the newspaper said.
The New York Times also reported in June 2017 that surveillance intercepts appeared to indicate that Kislyak discussed a private meeting he had with Sessions at a Trump campaign event at the Mayflower Hotel in Washington. The Times has not received any indication that its reporters’ records were seized.
The media leaks infuriated Trump, who repeatedly railed against them, especially those that revealed details of the government’s efforts to investigate Russia’s interference in the 2016 election and whether any of his campaign advisers had conspired with Russia.
In August 2017, Sessions, as the attorney general, condemned the “dramatic growth in the number of unauthorized disclosures of classified national security information in the past several months.”
Under the Obama administration, the Justice Department also aggressively pursued officials who provided reporters with sensitive information. In 2013, prosecutors obtained the phone records of reporters and editors of The Associated Press. In that instance, law enforcement officials obtained the records for more than 20 telephone lines of its offices and journalists, including their home and cellphone numbers.
In addition, the Justice Department seized the phone records of James Rosen, then a Fox News reporter, after one of his articles had included details of a secret US report on North Korea. An affidavit described Rosen as “at the very least, either as an aider, abettor and/or co-conspirator.”
The Justice Department’s decision to seek the phone records were widely condemned in the news media.
In 2013, the attorney general at the time, Eric Holder, issued new guidelines that significantly narrowed the circumstances under which journalists’ records could be obtained but did not preclude prosecutors from seeking phone records and emails for national security reasons.
In a July 2017 email, Sarah Isgur Flores, then a top spokeswoman for the Justice Department, tried to cast doubt that a meeting had happened at all between Kislyak and Sessions. She described the intercept as “debunked” and questioned its credibility as she defended Sessions in the news media.
Isgur described the news reporting as “serious leaks to our national security.” The email was obtained by reporter Jason Leopold of BuzzFeed News under the Freedom of Information Act.
Last year, the Trump administration declassified sensitive transcripts of Kislyak speaking with Trump’s former national security adviser Michael Flynn. The documents also revealed highly sensitive FBI abilities, showing that the bureau was able to monitor the phone line of the Russian Embassy in Washington even before a call from Kislyak connected with Flynn’s voicemail.
In his extensive investigation, Robert Mueller, the special counsel, found “no evidence that Kislyak conversed with either Trump or Sessions after the speech, or would have had the opportunity to do so,” his office’s 2019 report said.
[The New York Times]